New Rules Restrict Use of Genetic and Health Related Information by Employers

The Equal Employment Opportunity Commission (EEOC) has issued final rules implementing the Genetic Information Nondiscrimination Act (GINA), effective February 1, 2011. GINA applies to employers with 15 or more employees. The final rules require employers to provide mandatory notice to health care providers that conduct employment-related medical examinations, including pre-employment, fitness for duty, and return to work medical examinations. Safe Harbor notices are required for the Family Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA).

Title II of GINA explains the prohibitions on acquiring and using genetic and other health-related information in employment. They also define genetic information, provide model language for employers to use when requesting medical information, and detail narrow exceptions to the prohibitions of the law.

Genetic information includes information about an individual’s or family member’s genetic tests as well as information about the manifestation of a disease or disorder in an individual’s family members (i.e., family medical history).

While the typical employer may find the rules perplexing, there are important implications regarding disability leave and return to work administration.

Mandatory Notice to Health Care Providers

Medical examinations

In all cases where an employer requests a health care professional to conduct an employment -related medical examination on the employer’s behalf, including pre-employment, fitness for duty, and return to work medical examinations, the employer must tell health care providers not to collect genetic information, including family medical history, to determine the ability of the employee to perform the job, and must take reasonable measures within its control if it learns that health care providers are requesting genetic information during medical examinations.

Safe Harbor Notice for FMLA and other medical inquiries where Genetic Information may be inadvertently disclosed

FMLA – Employee’s own serious health condition

To take advantage of GINA’s “safe harbor” when an employer may inadvertently obtain genetic information, the a following notice can appear as an addendum on a separate sheet of paper when requesting health-related information about the employee under the FMLA or other disability leave policy:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members. In order to comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

Alternative language may also be used, as long as individuals and health care providers are informed that genetic information should not be provided.

If an employer fails to give written or verbal notice, it may nonetheless establish that a particular receipt of genetic information in response to a request for medical information was an inadvertent acquisition if the employer’s request was not made in a way that was “likely to result in obtaining genetic information.”

ADA – Reasonable accommodations and direct threat

Requests for medical-related information are often made under the ADA or the New Jersey Law Against Discrimination to evaluate 1) a request for a reasonable accommodations, 2) whether a medical condition or disability is impairing, or may impair, an employee's ability to perform his/her job, or 3) whether an employee’s medical condition poses a direct threat.

Assuming that the employer takes care to narrow its request for medical information consistent with the ADA, the same considerations pertaining to the FMLA apply. Note: If the employer is unsure whether its request is sufficiently narrow, it should provide a mandatory notice to the health care professional.

No Notice Required – caring for an ill family member

Individuals requesting leave to care for a seriously ill family member under the FMLA or similar state law may be required to provide family medical history (for example, when completing the certification form required by the FMLA.). An employer that receives family medical history under these circumstances would not violate GINA and no GINA notice is required.

This exception also applies to an employer that is not covered by the FMLA or similar state law but that has a policy allowing for the use of leave to care for ill family members, as long as that policy is applied evenhandedly by requiring all employees seeking leave to provide documentation about the health condition of the relevant family member.

Family medical history received from individuals requesting leave pursuant to the FMLA, similar state law, or company policies, is subject to GINA’s confidentiality requirements and must be placed in a separate medical file and treated as a confidential medical record.

Health Insurance Portability and Accountability Act (HIPAA)

GINA does not limit the rights or protections under HIPAA.

State Laws

The New Jersey Law Against Discrimination prohibits discrimination based on genetic information. Nothing in GINA prohibits a state from providing equal or greater protection. Workers’ Compensation

Nothing in GINA limits or expands the protections, rights, or obligations of employers or employees under applicable workers’ compensation laws.

Medical information that is not genetic information

An employer does not violate GINA when it obtains, uses or discloses medical information that is not genetic information. Note: Other laws, including but not limited to the FMLA ADA, and HIPPA may apply.

Poster

GINA requires employers to post in conspicuous places within the workplace a notice that summarizes GINA for employees and applicants.

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